MEMORANDUM for PETITIONERS

TEAM CODE:-TC-6A

2ND INTRA MOOT COURT COMPETITION

BEFORE THE HONOURABLE SUPREME COURT OF ZAKANDA

IN THE MATTER OF

C.P.No./ /2022
(SPECIAL LEAVE PEITION UNDER ARTICLE 136)

OTT PLATFORMS V. UNION OF ZAKANDA

(APPELLANT) (RESPONDENT)

MEMORANDUM OF RESPONDENT

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MEMORANDUM for PETITIONERS

TABLE OF CONTENTS

LIST OF ABBREVIATIONS ...........................................................................................iii

INDEX OF AUTHORITIES.............................................................................................v

STATEMENT OF JURISDICTION ..............................................................................vi

STATEMENT OF FACTS ..............................................................................................viii

ISSUES RAISED...............................................................................................................ix

SUMMARY OF ARGUMENTS.......................................................................................xi

BODY OF ARGUMENTS ................................................................................................xii

I. WHETHER THE DECISION OF THE HIGH COURT OF NIMIMBA

VIOLATES THE FREEDOM OF SPEECH AND EXPRESSION OF CREATORS
ON HOOTSHOOT AND OTHER OTT PLATFORMS?.....................................xii

II. WHETHER THE RELEASE OF TRAILER WITH PERSONAL MOMENTS

VIOLATES THE PRIVACY OF MR. PANDA AND IS ULTRA VIRES THE
CONTRACT?.....................................................................................................xiv

III. WHETHER THE ONLINE STREAMING OTT PLATFORMS VIOLATED THE

SECTIONS 67, 67A, AND 67B OF THE INFORMATION TECHNOLOGY ACT
OF 2021?.............................................................................................................xvi
A. The online streaming OTT platform Hootshoot shall be held liable
for showing Obscene and Seditious Content?...............................xviii

PRAYER………………………………………………………………………………….XXII

LIST OF ABBREVIATION

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MEMORANDUM for PETITIONERS

ABBREVIATION FULL FORM

U.P Uttar Pradesh

M.P Madhya Pradesh

Ors. Others

IPC Indian penal code

OTT Over the top

IT Information technology

HC High Court

Pvt. Private

Ltd. Limited

v. Versus

C.J Chief Justice

§ Section

S.C.C. Supreme Court Case

art. Article

CONST. Constitution

INDEX OF AUTHORITY

SUPREME COURT CASES PAGE NO.

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MEMORANDUM for PETITIONERS

Express Newspapers Pvt. Ltd. and Ors. vs. Union of India (UOI) and xiv
Ors. 1986 AIR 872, 1985 SCR Supl. (3) 382
ABK PRASAD VS. UNION OF INDIA (UOI) AND ORS. 2002 (3) ALT
xv
332, 2002 CriLJ 2464

Shri Anand Patwardhan vs The Union Of India (Uoi) And Ors 2000 xix
SCC OnLine Del 216 : (2000) 86 DLT 246 (DB)

Agij Promotion of Nineteenonea Media Pvt. Ltd. and Others v. Union xx

of India and Another

Justice K.S.Puttaswamy(Retd) vs Union Of India 2017) 10 SCC 1,

xvi
AIR 2017 SC 4161

HIGH COURT CASES Page No.

Devidas Ramachandra Tuljapurkar v. State of Maharashtra xiii

Kharak Singh V. State of U.P 1963 AIR 1295, 1964 SCR (1) 332
1975 AIR 1378, 1975 SCR (3) 946 xiv
Gobind v. State of M.P1975 AIR 1378, 1975 SCR (3) 946
xiv

Sharat Babu Digumarti v. Govt (NCT of Delhi) 2016 SCC OnLine xviii
SC 1464

Bobby Art International, Etc vs Om Pal Singh Hoon & Ors. (1996) 4 xx
SCC 1

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MEMORANDUM for PETITIONERS

UNITED STATES CASE Page No.

xv
Griswold v. Connecticut ( 381 US 479)
xv
Roe v. Wade (410 US 113)

STATUTES Page No.

INDIA CONST. art. 19, cl. 6 xiii

INDIA CONST. art. 19, cl. 1, sub cl. g xii

The Indian Penal Code 1860, § 292 xii

Information Technology Act 2021, § 67 xii

Information Technology Act 2021, § 67A xvii

INDIA CONST. art. 21 xiv

Information Technology Act 2021, § 87 xx

JOURNALS AND CONVENTION PAGE NO.

Europe Convention on Human Rights art.8 xvi

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MEMORANDUM for PETITIONERS

STATEMENT OF JURISDICTION

It is humbly submitted that the petitioner has approached this Hon’ble Supreme Court invoking its
jurisdiction under Article 136 of the Constitution of Zakanda read with Article 142 of Constitution.
Article 136 in the Constitution of India 1949: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces

Thereby, the Petitioner submits this memorial which sets forth the facts and the laws on which the
claims are based.

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MEMORANDUM for PETITIONERS

STATEMENT OF FACTS

BACKGROUND

1. Zakanda is a republic and one of the fastest emerging economies in the world. Zakanda's
elected administration opened its economy to international actors in numerous industries,
resulting in a technological revolution. Over the years, the public internet services has
expanded enabling customer to have access to nearly all of the services necessary. the
technological breakthrough in Zakanda was followed by a fast expansion of voice, video, and
Across-the-top ("OTT") application services supplied over networks. broadcasters on
television in zakanda were adhere to the program code ,owners of web series, films, and other
online or digital OTT platform were exempt from censorship and are subject to the IT act.
This enabled OTT Platforms in Zakanda to display any type of content that was previously
either not permitted by the Zakanda Censor Board or accepted only with age-appropriate
certification owing to numerous restrictions.
2. Due to the emergence of COVID-19, all movie halls and leisure centres, such as parks,
auditoriums, theatres, sports stadiums, and so on, were closed in all states of Zakanda. This
enhanced the popularity and viewing of material on OTT platforms to the point where every
OTT platform saw a significant rise in subscriptions from Zakanda residents, resulting in
massive income. This boosted OTT platforms in Zakanda , and they began producing original
content in Zakanda , investing large quantities of money.

Hotshot come with idea to display the life of 5 families living in nimimba and the entire shooting
was done by drone of the daily occurrence in their life and the contract state that entire content
resulting will be owned by producers.

INSTANT MATTERS

 Mr. Panda held bachelor private party for his friend and some female dancers were also
invited and drone filmed the whole party and Mr panda understood that the foul language

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MEMORANDUM for PETITIONERS

used in party can tarnish his image . He believed that party is not in the contract because he
signs the contract for family time.
 Mr. chan got to know that his son uses drugs and which may be recorded by camera .
 Mrs sindi and Mrs shiny held parties and staged religious meeting in which they commented
about the family who practise kingi religion, they believe that if such video is broadcasted , it
will offend the religious sentiments od community.
 Ms chum stand up comedian perform in the Mr panda private party and feature one of her
jokes which she claims copyright. Ms chum contacts Mr panda int order to prevent hootshoot
from using this content.
 Mr panda approached high court for an stay on the further broadcasting of the web series.
The Government of Zakanda informed the High Court that Sections 67A, 67B, and 67C of
the Zakanda Information Technology Act called for penalties and imprisonment for
publishing or sending obscene, sexually explicit, or showing minors in sexually explicit
actions in electronic form. Furthermore, articles of the Zakanda Penal Code, 1860 ("IPC")
that penalise the transmission of libellous content apply to OTT sites.

Also there are laws for the same in The Information technology (Intermediary Guidelines and Digital
Media Ethics Code) Rules, 2021.. The online video platform Hootshoot, refuted all of Mr Panda’s
and the Zakanda government's claims.

Hootshoot stated that the Central Board of Film Certification (CBFC) in Zakanda is a body for
certification of films solely for public theatre audiences, as per the Cinematograph Act of 1955. It
approves a film for public screening depending on its content and if it is harmful to national interest,
morality, or decency. In contrast to films and other conventional mediums, there is no regulation of
digital material, therefore Hootshoot cannot be banned from displaying the web series according to
its content, and the whole copyright of the content also belonged to Hootshoot as the producers.
Hootshoot's status as an OTT service provider did not fall under the purview of intermediaries under
the IT Act, and so did not require a licence from the Ministry, according to another argument
advanced before the High Court. The reliance on Article 19 of Constitution of Zakanda was placed
by counsel for OTT platform. The High Court of Judicature in Nimimba issued a major decision on
OTT Sites, which has far reaching implications for all current OTT platforms in Zakanda. The High
Court ruled that such content related to Mr Panda’s bachelor party showing female dancers in a bad
light objectifies women and portrays them in a negative light, making them vulnerable to indecent
thoughts and undermining their fundamental right to life, and thus the available content is

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MEMORANDUM for PETITIONERS

uncertified, obscene, vulgar, sexually explicit, and legally restricted. They stated that the show might
potentially contain additional content that is likely to incite community hate, persuade minors to use
drugs, and other potentially seditious content.

ISSUES RAISED

I. Whether the decision of the high court of nimimba violates the freedom of speech
and expression of creators on hootshoot and other ott platforms?
II. Whether the release of trailer with personal moments violates the privacy of mr.
Panda and is ultra vires the contract?
III. Whether the online streaming ott platforms violated the sections 67, 67a, and 67b of
the information technology act of 2021?

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MEMORANDUM for PETITIONERS

SUMMARY OF ARGUMENTS

ISSUE I: Whether the decision of the High Court of Nimimba violates the freedom of speech
and expression of creators on Hootshoot and other OTT platforms?

It is submitted that the Petitioner has filed a petition under special leave petition under section 136
of Indian constitution before the Supreme court of Zakanda as the High court decision violates the
petitioners Freedom of speech and expression. It is further submitted before the hon’ble court that a
film or a drama or a novel or a book is a creation of art and indeed a part of free speech and
expression, as perceived under art 19(1)(a) of the constitution and artistic freedom is a guaranteed
and an enforceable fundamental right. And when a content is published without malicious intent
then it is bound to be subjectively interpreted and only after much thought and caution the
provision must be applied and government should ban another individual’s work of art or creative
expression. Thus, the aforesaid decision of the High Court is in violation of the provisions of
Article 19(1) of the Constitution of Zakanda and, therefore, the same is required to be struck down
and quashed.

ISSUE 2: Whether the release of trailer with personal moments violates the privacy of Mr.
Panda and is ultra vires the contract?

It is humbly submitted by the petitioner that release of trailer doesn’t violates the right of privacy
of Mr. Panda as he has given the consent to the OTT platform by signing the Contract to record the
daily life of his and his family through drone and there are no boundary in the contract up to which
extent this contract is valid. Right to privacy is not enumerated as a fundamental right in our
Constitution but has been inferred from Article 21.

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MEMORANDUM for PETITIONERS

ISSUE 3:Whether the online streaming OTT platforms violated the Sections 67,67A and 67B
of the information technology act of 2021?

It is humbly submitted before this Hon’ble Court that online streaming OTT platforms is not
violative of Section 67,67A and 67B of the Information Technology Act, 2021 because Hootshot
tailer adhere to all the code of ethics that an online platform should follow.

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MEMORANDUM for PETITIONERS

BODY OF ARGUMENTS

ISSUE I: Whether The Decision Of The High Court Of Nimimba Violates The Freedom Of
Speech And Expression Of Creators On Hootshoot And Other Ott Platforms?

The Decision of High Court of Nimimba is violative of the art 19(1)(a) of the constitution
of Zakanda.The Council on behalf of the appellants would humbly contends that: All
citizens have the right to freedom of speech and expression as conferred by the article
19(1)(a) of the Constitution of Zakanda. And the decision of the High Court, since the
impact of the same would lead to the suppression of the voices of the creators, violates the
fundamental right to speech and expression of the OTT platforms.

The council would point that, as accused by the state of Nimimba and upheld by the
honourable High Court Nimimba, the Web Series was not violative of the section 67 of the
IT Act 2021. The section 671 states that “Whoever publishes or transmits or causes to be
published or transmitted in the electronic form, any material which is lascivious or appeals
to the prurient interest or if its effect is such as to tend to deprave and corrupt persons who
are likely, having regard to all relevant circumstances, to read, see or hear the matter
contained or embodied in it, shall be punished on first conviction with imprisonment of
either description for a term which may extend to three years and with fine which may
extend to five lakh rupees and in the event of second or subsequent conviction with
imprisonment of either description for a term which may extend to five years and also with
fine which may extend to ten lakh rupees.” The council would, with respect argue that, the
content of the web series doesn’t falls under the cause of Obscenity as defined in the
section 292 of IPC2 which states— “a book, pamphlet, paper, writing, drawing, painting,
representation, figure or any other object, shall be deemed to be obscene if it is lascivious

1
Information Technology Act 2021, § 67

2
The Indian Penal Code 1860, § 292

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MEMORANDUM for PETITIONERS

or appeals to the prurient interest or if its effect, or (where it comprises two or more
distinct items) the effect of any one of its items, is, if taken as a whole, such as to tend to
deprave and corrupt person, who are likely, having regard to all relevant circumstances, to
read, see or hear the matter contained or embodied in it”, clearly sets lasciviousness and
the tendency to corrupt the receiver as the parameters, and also takes into consideration the
malicious intent.

The Council would contend that no such parameters are met. The web series records and
shows the lives of the members with their explicit consent, which is present in the form of
their acceptance or affirmation of the contract as proposed by the OTT platform
Hootshoot. Also, as held in the case of Devidas Ramachandra Tuljapurkar v. State of
Maharashtra 3 and others that “There is no authority who gives a licence to a poet. These
are words from the realm of literature. The poet assumes his own freedom which is
allowed to him by the fundamental concept of poetry. He is free to depart from reality; fly
away from grammar; walk in glory by not following systematic metres; coin words at his
own will; use archaic words to convey thoughts or at- tribute meanings; hide ideas beyond
myths which can be absolutely unrealistic; totally pave a path where neither rhyme nor
rhythm prevail; can put serious ideas in satires, ifferisms, notorious repartees; take aid of
analogies, metaphors, similes in his own style, compare like life with sandwiches that is
consumed everyday or life is like peeling of an onion, or society is like a stew; define
ideas that can balloon into the sky never to come down; cause violence to logic at his own
fancy; escape to the sphere of figurative truism; get engrossed in the universal eye for
resemblance, and one can do nothing except writing a critical appreciation in his own
manner and according to his under- standing. When a poet says I saw eternity yesterday
night, no reader would understand the term eternity in its prosaic sense.”, the council
would submit with all due respect that, the decision of the High Court is against the art of
the creators which is intrinsic to the freedom of speech and expression.

The council on behalf of the defendants would humbly submit that, the decision of the
High Court Of Nimimba violates the freedom of profession and business of the claimants,
as conferred under the article 19(1)(g) of the Constitution Of Zakanda. The article 19(6) 4
of the constitution of Zakanda lays down the reasonable restrictions on the freedom of
profession on the basis of public interest and reasonableness.

3
Devidas Ramachandra Tuljapurkar v. State of Maharashtra
4
INDIA CONST. art. 19 cl. 6

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MEMORANDUM for PETITIONERS

The council would humbly argue that the decision of the HC is not in consonance of the
clause of public interest as no content of the series intends to or does violate the public
order (as defined in the police act of 1861). Also the content was no where unreasonable,
specially when the families involved, expressed their consent explicitly.

Also from the para 206 of the judgement of Express Newspapers Pvt. Ltd. and Ors. vs.
Union of India (UOI) and Ors.5, it is clear that the Right to an object, even if not evoked by
the fundamental rights guaranteed under art 19(1)(g), but springs from terms of contract
between the parties regulated by other laws governing the subject. Here clearly there was a
contract concerning the issue and that contract allowed the OTT platforms to show the
content recorded.

ISSUE 2: Whether The Release Of Trailer With Personal Moments Violates The Privacy Of
Mr. Panda And Is Ultra Vires The Contract?

The right to privacy as an independent and distinctive concept originated in the filed of
Tort law, under which a new cause of action for damages resulting from unlawful invasion
of privacy was recognized. This right has two aspects which are but two faces of the same
coin - (1) the general law of privacy which affords a tort action for damages resulting from
an unlawful invasion of privacy and (2) the constitutional recognition given to the right to
privacy which protects personal privacy against unlawful governmental invasion. The first
aspect of this right must be said to have been violated where, for example, a person's name
or likeness is used, without his consent, for advertising - or non-advertising - purposes or
for that matter, his life story is written - whether laudatory or otherwise - and published
without his consent as explained hereinafter. In recent times, however, this right has
acquired a constitutional status. Right to privacy is not enumerated as a fundamental right
in our Constitution but has been inferred from Article 216. The first decision of this Court
dealing with this aspect is Kharak Singh V. State of U.P7. A more elaborate appraisal of
this right took place in a later decision in Gobind v. State of M.P8 wherein Mathew, J.
speaking for himself, Krishna Iyer and Goswami, JJ. Traced the origins of this right and
also pointed out how the said right has been dealt with by the United States Supreme Court
5
Express Newspapers Pvt. Ltd. & Ors. vs Union Of India & Ors. 1986 AIR 872, 1985 SCR Supl. (3) 382
6
INDIA CONST art. 21
7
Kharak Singh V. State of U.P 1963 AIR 1295, 1964 SCR (1) 332
8
Gobind v. State of M.P 1975 AIR 1378, 1975 SCR (3) 946

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MEMORANDUM for PETITIONERS

in two of its well-known decisions in Griswold v. Connecticut9 and Roe v. Wade10. After
referring to Kharak Singh and the said American decisions, the learned Judge stated the
law in the following words ABK Prasad vs. Union of India (UOI) and Ors.11 privacy-
dignity claims deserve to be examined with care and to be denied only when an important
countervailing interest is shown to be superior. If the Court does find that a claimed right
is entitled to protection as a fundamental privacy right, a law infringing it must satisfy the
compelling State interest test. privacy primarily concerns the individual. It therefore relates
to and overlaps with the concept of liberty. The most serious advocate of privacy must
confess that there are serious problems of defining the essence and scope of the right.
Privacy interest in autonomy must also be placed in the context of other rights and values.

Any right to privacy must encompass and protect the personal intimacies of the home, the
family, marriage, motherhood, procreation and child-rearing. This catalogue approach to
the question is obviously not as instructive as it does not give analytical picture of the
distinctive characteristics of the right of privacy. Perhaps, the only suggestion that can be
offered as unifying principle underlying the concept has been the assertion that a claimed
right must be a fundamental right implicit in the concept of ordered liberty.

There is nothing to prevent one from using the word 'privacy' to mean the freedom to live
one's life without governmental interference. But the Court obviously does not so use the
term. Nor could it, for such a right is at stake in every case.

There are two possible theories for protecting privacy of home. The first is that activities
in the home harm others only to the extent that they cause offence resulting from the mere
thought that individuals might be engaging in such activities and that such 'harm' is not
constitutionally protectable by the State. The second is that individuals need a place of
sanctuary where they can be free from societal control. The importance of such a sanctuary
is that individuals can drop the mask, desist for a while from projecting on the world the
image they want to be accepted as themselves, an image that may reflect the values of their
peers rather than the realities of their natures.

9
Griswold v. Connecticut 381 U.S. 479 (1965)

10
Roe v. Wade 410 U.S. 113 (1973)

11
ABK Prasad vs. Union of India (UOI) and Ors  2002 (3) ALT 332, 2002 CriLJ 2464

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MEMORANDUM for PETITIONERS

The right to privacy in any event will necessarily have to go through a process of case-by-
case development. Therefore, even assuming that the right to personal liberty, the right to
move freely throughout the territory of India and the freedom of speech create an
independent right of privacy as an emanation from them which one can characterize as a
fundamental right, we do not think that the right is absolute.

The Europe Convention on Human Rights, which came into force on 3-9-1953, represents
a valiant attempt to tackle the new problem. Article 812 of the Convention is worth citing.

1. Everyone has the right to respect for his private and family life, his home and his
correspondence.

2. There shall be no interference by a public authority with the exercise of this right except
such as is in accordance with the law and is necessary in a democratic society in the
interests of national security, public safety or the economic well-being of the country, for
the prevention of disorder or crime, for the protection of health or morals or for the
protection of the rights and freedoms of others. "

Since the right to privacy has been the subject-matter of several decisions in the United
States, it would be appropriate to briefly refer to some of the important decisions in that
country."

As time changes, needs of the society changes. As the society changes, needs of the
society also changes. Right to Privacy has to be viewed from the changing prism of time.
Those who propound the importance of Privacy at the drop of a hat, the very next moment
they are ready to bare it out all on the social media with minutest details of their private
lives. In the celebrated Justice Puttaswamy13 judgement, one of the important points that
got missed out was what Justice Nariman pointed out, privacy is only with regard to those
details which one does not choose to part with. Once details are in the public domain,
republishing them cannot be objected. In such a case, one can certainly take the plea that a
person has waived his fundamental right and cannot complain of violation of privacy.

ISSUE 3:Whether The Online Streaming OTT Platforms Violated The Sections 67,67A And
67B Of The Information Technology Act Of 2021?
12
Privacy and Human Rights, Ed. AH Robertson, P.176.
13
Justice K.S.Puttaswamy(Retd) vs Union Of India 2017) 10 SCC 1, AIR 2017 SC 4161

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MEMORANDUM for PETITIONERS

I would like to humbly differ from the observations made by the Honourable High Court of
Judicature of Nimimba that the content related to Mr Panda’s bachelor party showing female dancers
in a bad light objectifies women and portrays them in a negative light, making them vulnerable to
indecent thoughts and undermining their fundamental right to life, and thus the available content is
uncertified, obscene, vulgar, sexually explicit, and legally restricted.

One of the basic fundamental rights that any human being will acquire on their birth is the Freedom
of Speech and Expression. It is by virtue of this right that every person has the liberty to express
themselves and to convey their thoughts, speech and feelings. The 1948 instrument known as
Universal Declaration of Human Rights or UDHR (for short) proclaims that the right to freedom of
speech, opinion and expression is available with all and includes within its ambits not only the
freedom to hold personal opinions without any kind of influence or interference but also the freedom
to ask for, to receive and to impart through any media any information or ideas. Thus, the spirit of
this fundamental right, which has been guaranteed to us under Article 19 14 in Part III of the
Constitution, is the ability to speak, think and express freely without any fear and to be able to obtain
information from others through publications without the apprehension of having to face
unreasonable punishment, control, limitation or penalty of any kind.

Now coming to the question on whether I have violated the Sections 67, 67A and 67B of the
Information Technology Act 2001. Kindly allow me to go through each of the sections for a better
understanding. To start with, Section 6715 refers to -

- Punishment for publishing or transmitting obscene material in electronic form - Whoever

publishes or transmits or causes to be published or transmitted in the electronic form, any
material which is lascivious or appeals to the prurient interest or if its effect is such as to
tend to deprave and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it, shall be
punished on first conviction with imprisonment of either description for a term which
may extend to three years and with fine which may extend to five lakh rupees and in the
event of second or subsequent conviction with imprisonment of either description for a
term which may extend to five years and also with fine which may extend to ten lakh
rupees;

Section 67A16 refers to –

14
INDIA CONST art. 19
15
Id. at 1
16
Information Technology Act 2021 § 67A

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MEMORANDUM for PETITIONERS

- Punishment for publishing or transmitting of material containing sexually explicit act,

etc., in electronic form - Whoever publishes or transmits or causes to be published or
transmitted in the electronic form any material which contains sexually explicit act or
conduct shall be punished on first conviction with imprisonment of either description for
a term which may extend to five years and with fine which may extend to ten lakh rupees
and in the event of second or subsequent conviction with imprisonment of either
description for a term which may extend to seven years and also with fine which may
extend to ten lakh rupees.

A. The Online Streaming OTT Platform Hootshoot Shall Be Held Liable For
Showing Obscene And Seditious Content?

- What is obscene, lascivious and prurient?

o We are living in the 20th century, in the era of developing thoughts and new
culture, with the people having new and old traditions with their different culture
and sentiments, that makes us a member of society. A unique gesture of a person to
present himself or his work makes someone or the whole society uncomfortable.
But is the gesture really violating someone’s sentiments or it’s just a unique or new
thought to express himself or his work? This difference in thinking makes the word
obscenity obscure, so it is too difficult to know what really Obscene and what is
not.
o The word obscene came from a Latin term Obscene which means ‘offensive’
especially modesty. The Oxford dictionary defines obscene as “offensive or
disgusting by accepted standards of morality and decency”. There are other terms
to define obscenity like- Lascivious, Prurient, Deprave etc. each having a meaning
of its own.

 Lascivious - Feeling or showing strong sexual desire

 Prurient - Having or showing too much interest in things connected with sex
 Deprave - To make somebody morally bad.

While discussing the purview of the provision, a question always arises with regard to the
uncertainty over the application of S. 67 of the Information Technology Act, 2000 vis a vis. S. 292 of
the Indian Penal Code, 1860. This was settled in the case Sharat Babu Digumarti v. Govt (NCT of

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MEMORANDUM for PETITIONERS

Delhi)17 which maintained the overriding effect of special laws (IT Act) on the provisions of general
law (Indian Penal Code).

For an act to qualify as Obscene, there are no one size fits for all formula. Each case should be
judged on its own merit. To figure out whether a case passes obscenity test or not, Supreme Court
has laid down a broad parameter. There are various tests that are used to determine such as –

- Miller Test.
- Hicklin’s Test.
- Community Standards Test.

Herein we would like to draw the Honourable Court’s attention to the fact that we as an intermediary
defined in the Information Technology (Intermediary Guidelines and Digital Media Ethics Code)
Rules, 2021 are a subscription on-demand based platform which is driven solely by Users. Over the
top (OTT) is film and television content that is provided via the Internet as opposed to the traditional
means of a cable or satellite provider. We offer a range of content and use artificial intelligence to
suggest users the content they are likely to view based on their past viewership on the platform.

The objections raised by the Honourable High Court of Judicature of Nimimba are based on a
promotional trailer of a programme that is produced and broadcasted by our platform. The content
forms a part of the Reality TV genre wherein we are capturing daily lives of 5 families. We would
like to humbly disagree with the so-called “objectionable content/clip” that was termed by the
Honourable High Court. The trailer had a clip/shot from a bachelor party in which one of the family
members participated, it also included dancers who were also in the party. To term them as
“…..objectifies women and portrays them in a negative light, making them vulnerable to indecent
thoughts….” would be an over-stretch.

In Shri Anand Patwardhan vs The Union Of India (Uoi) And Ors 18. on 19 July, 1996, the court had
delved upon the power of pre-censorship, Hidayatullah, C.J observed "Our standards must be so
framed that we are not reduced to a level where the protection of the least capable and the most
depraved amongst us determines what the morally healthy cannot view or read. The standards that
we set for our censors must make a substantial allowance in favour of freedom thus leaving a vast

17
Sharat Babu Digumarti v. Govt. of NCT of Delhi, 2016 SCC OnLine SC 1464
18
Shri Anand Patwardhan vs The Union Of India (Uoi) And Ors 2000 SCC OnLine Del 216 : (2000) 86 DLT 246 (DB)

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MEMORANDUM for PETITIONERS

area for creative art to interpret life and society with some of its foibles along with what is good. The
requirements of art and literature include within themselves a comprehensive view of social life and
not only in its ideal form and the line is to be drawn where the average moral man begins to feel
embarrassed or disgusted at a naked portrayal of life without the redeeming touch of art or genius
or social value. If the depraved begins to see in these things more than what an average person
would, in much the same way, as, it is wrongly said, a Frenchman sees a woman's legs in everything,
it cannot be helped, in our scheme of things ideas having redeeming social or artistic value must
also have importance and protection for their growth."

The same was again highlighted in Bobby Art International, Etc vs Om Pal Singh Hoon & Ors 19 on 1
May, 1996 by Justice Bharucha wherein he observed that “Bandit Queen” “tells a powerful human
story”. He held that the scene in which the main character is humiliated by being stripped naked and
paraded around could not have had its intended effect in any manner other than by explicitly
showing the scene depicting her humiliation. He added that, in this film, “[r]ape and sex are not
being glorified” but are used to focus on the “trauma and emotional turmoil of the victim to evoke
sympathy for her and disgust for the rapist”. In addition, Bharucha noted that the expletives used in
the movie were commonly used and “no adult would be tempted to use them because they were used
in the film”.

More pertinently, we would also like to draw your attention to the observations made by Honourable
High Court of Judicature of Nimimba is based on a promotional trailer, it is nothing but amounts to
pre-censorship. Here, we would like to apprise the Honourable Supreme Court about Agij Promotion
of Nineteenonea Media Pvt. Ltd. and Others v. Union of India 20and Another 14204 of 2021 Bombay
High Court which had stayed the guidelines released by the government in Information Technology
(Intermediary Guidelines and Digital Media Ethics Code) Rules, 2021 – specifically Rule 9(1) of the
IT Rules requires publishers to adhere to a 'Code of Ethics', which comprises the Norms of
Journalistic Conduct of the Press Council of India ("Norms") and the Programme Code under the
Cable Television (Network) Regulation Act 1995 ("Code"). Rule 9(3) of the IT Rules sets out a
three-tier grievance redressal mechanism which allows anyone to raise complaints against publishers.
It includes an oversight mechanism to be constituted by the Government on the following grounds –

- Firstly, that they imposed an obligation on publishers to observe the Code of Ethics
provided under a completely different statutory regime (print journalism and cable TV),

19
Bobby Art International, Etc vs Om Pal Singh Hoon & Ors(1996) 4 SCC 1
20
Agij Promotion of Nineteenonea Media Pvt. Ltd. and Others v. Union of India and Another

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MEMORANDUM for PETITIONERS

alien to the IT Act. The Court noted that Section 87 21 of the IT Act does not empower the
government to impose these compliances upon publishers. The Norms are guidelines
framed by the Press Council of India. The sanction of the Norms is moral and not
statutory, in its usual journalistic setting. However, the Code of Ethics has placed the
Norms to the status of mandatory compliance.

- Second, that Rule 9 of the IT Rules prima facie infringed the constitutional guarantee to
freedom of speech granted by Article 19(1)(a), by requiring publishers to comply with the
Norms.

We would also like to apprise the Honourable Court that, all the OTT platforms have devised a self-
regulation code provisions of which are as follows –

- The code applies to any online curated content providers who work in Zakanda, and is
developed by them. 
- Its members agree to take up “reasonable efforts in good faith” to implement its
principles. 
- The code requires signatories to invest in parental controls and content descriptors that
provide viewers with information on mature content.
- The code argues that since OTT platforms are on-demand, they constitute private
exhibitions that don’t fall under laws that apply for theatrical releases and TV broadcasts. 
- It also argues that this content is subject to “user-initiated access controls”, presumably
passwords and parental controls.

Having said that, we would humbly submit that the observations made by Honourable High Court of
Judicature of Nimimba were incorrect and grossly unfair and request the Honourable Court to quash
the strictures passed by Honourable High Court and grant us relief to proceed with the broadcasting
of the intended programme.

PRAYER

21
Information Technology Act 2021 § 87

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MEMORANDUM for PETITIONERS

Wherefore, in the lights of the facts stated, arguments advanced and authorities cited, it is most
humbly prayed and implored before the honourable Court of Zakanda, that it may be graciously
pleased to adjudge and declare that:

Petitioner/ Appellant

1. The High Court has erred in declaring Hootshot platform as a violative of section 67,67A and 67B
of the Information Technology Act of 2021.

2. the release of trailer do not violates the privacy of Mr. Panda.

3. the decision of High court violates the freedom of speech and expression of creators on Hootshot.

Also, pass any order that the Honourable Court may deem fit in the favour of THE PETITIONER to
meet the ends of equity, justice, and good conscience.

For this act of Kindness, the Petitioner shall duty-bound forever pray.

Place: Zakanda S/d-

Dated: 21st April 2022 COUNSELS for the PETITIONERS

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MEMORANDUM for PETITIONERS

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